Vanderhoof v. Reyes

Filing 27

ORDER: Adopting Findings and Recommendation 22 ; Denying Motion for Appointment of Counsel 25 . As this Court lacks jurisdiction to consider Petitioner's second petition for habeas relief, the petition is DENIED and this action is DISMISSED, with prejudice. Signed on 3/10/2025 by Judge Michael J. McShane. **2 PAGE(S), PRINT ALL**(Mark Vanderhoof, Prisoner ID: 6795983) (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARK ALLEN VANDERHOOF,
Petitioner,

Case No. 2:24-cv-443-CL

v.
ORDER
ERIN REYES,
Respondent.
___________________________
MCSHANE, Judge:
Magistrate Judge Mark D. Clarke filed a Findings and Recommendation (ECF No. 22),
and the matter is now before this court. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b).
Petitioner, proceeding pro se, filed objections to the Findings and Recommendation. ECF No. 24,
37. I have reviewed the file of this case de novo. See 28 U.S.C. § 636(b)(1)(c); McDonnell
Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). I find no
error. Petitioner also moves for appointment of counsel. ECF No. 25.
The Sixth Amendment right to counsel does not apply in habeas corpus proceedings.
Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722,
728 (9th Cir. 1986). However, the Rules Governing Section 2254 Cases instruct the Court to
appoint counsel if doing so is necessary for effective discovery or if an evidentiary hearing is
required. See Rules 6(a) and 8(c) of the Rules Governing Section 2254 Cases. In addition,
pursuant to 18 U.S.C. § 3006A(a)(2)(B), the court may appoint counsel to represent a petitioner
in a habeas corpus proceeding if “the interests of justice so require.” In deciding whether to
1 –ORDER

appoint counsel, the Court “must evaluate the likelihood of success on the merits as well as the
ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues
involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
As Magistrate Judge Clarke noted, this is Petitioner’s second federal habeas petition. In
2020, Petitioner filed his first federal habeas petition. Vanderhoof v. Blewett, 2:20-cv-456-YY
(D. Or.). Magistrate Judge You appointed the Federal Public Defender to represent Petitioner.
That petition was denied on the merits and the Ninth Circuit Court of Appeals declined to issue
Petitioner a Certificate of Appealability. And as noted by Magistrate Judge Clarke, absent an
order from the Ninth Circuit Court of Appeals, this Court lacks jurisdiction to consider a
successive petition for habeas relief. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).
Petitioner’s Motion for Appointment of Counsel (ECF No. 25) is DENIED.1
Magistrate Judge Clarke’s Findings and Recommendation (ECF No. 22) is ADOPTED.
As this Court lacks jurisdiction to consider Petitioner’s second petition for habeas relief, the
petition is DENIED and this action is DISMISSED, with prejudice.
IT IS SO ORDERED.
DATED this _____
10th day of March, 2025.
_______/s/ Michael J. McShane________
Michael McShane
United States District Judge

1

Although the Court lacks jurisdiction to consider the merits of Petitioner’s claim, the Court notes that Petitioner’s
claims lack merit. Petitioner argues double jeopardy renders his conviction unconstitutional. For support, Petitioner
notes the trial court acquitted him of Count 1. Count 1, however charged Petitioner with murder by abuse (through
neglect and maltreatment). Counts 3 and 4, however, charged Petitioner with murder by abuse (by having previously
engaged in a pattern and practice of assault and torture). Double jeopardy did not prevent the state from attempting
to prove Petitioner violated ORS 163.115, Murder by Abuse, in multiple ways. Additionally, nothing prevented the
trial court from finding that although Petitioner did not violate the statute in one way, he did violate the statute in
another way. The interests of justice do not justify appointing pro bono counsel under these circumstances.

2 –ORDER